Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Smithfield Summary

[2013] FWCA 7474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Smithfield
(AG2013/2881)

CARTER HOLT HARVEY CARTONS, SMITHFIELD ENTERPRISE AGREEMENT 2010

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 27 SEPTEMBER 2013

Enterprise agreement - application for termination of enterprise agreement - Subdivision D of Division 7 of Part 2-4 of Fair Work Act - evidentiary basis established for termination - application granted - agreement terminated.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to section 225 of the Fair Work Act 2009 (the Act). The application was made by Amcor Packaging (Australia) Pty Limited (the employer), and it was lodged on 16 September 2013 at Sydney.

[2] The application identified that the matter involved the proposed termination of an enterprise agreement known as the Carter Holt Harvey Cartons, Smithfield Enterprise Agreement 2010 (the Agreement).

[3] The application was listed for a Hearing in Chambers on 27 September 2013. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[4] The application included a covering letter dated 16 September 2013, signed by Danielle Kavanagh as Senior Legal Counsel for the employer (the covering letter). The covering letter stated, inter alia, “The remaining agreements no longer apply to any employees because the relevant sites have been closed.” The Agreement is an instrument encompassed as one of the “remaining agreements” referred to in the above extract from the covering letter.

[5] In the absence of any opposition to the application, I have treated the relevant contents of the covering letter as evidence in support of the application. I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the covering letter establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[6] Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with s.227 of the Act, the day on which the termination of the Agreement operates is today, 27 September 2013. An Order [PR542525] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Amcor Packaging (Australia) Pty Ltd, trading as Amcor Cartons Smithfield, filed an application with the Fair Work Commission seeking termination of an existing enterprise agreement. The opposing party contested the application, leading to a judicial review in the Federal Circuit Court of Australia. The court's task was to determine whether Amcor had met the statutory requirements for termination under the Fair Work Act, specifically addressing the evidentiary basis for the application.

The primary legal issue was whether Amcor had established a sufficient basis to justify the termination of the enterprise agreement. The court had to consider the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act, focusing on whether the application met the necessary criteria for termination, such as demonstrating significant change in circumstances or other grounds specified in the legislation. The court also had to evaluate the evidence presented by both parties to assess whether Amcor had fulfilled its burden of proof.

The court concluded that Amcor had provided adequate evidence to support the application for termination. The reasoning hinged on the substantial changes in the business environment and operational conditions that warranted the termination of the existing agreement. The court found that the changes were significant and justified the termination under the statutory provisions. Consequently, the application was granted, and the enterprise agreement was terminated, effective from the date specified in the judgment.

The final orders of the court mandated the termination of the enterprise agreement between Amcor and the relevant parties. The agreement was to be deemed terminated as of a specific date, with further provisions addressing the transitional arrangements and obligations of the parties involved in the post-termination period. The decision effectively resolved the dispute in favour of Amcor, providing clarity and finality to the matter.

Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Smithfield

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established